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| Practice management and technology articles written
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May 25, 2004 |
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Synopsis
In this article, trial and
technology consultant Ted Brooks discusses of the hottest topics in the
legal profession today — visual communication at trial. The article is
based on an MCLE course Ted has taught at numerous firms and government
offices. You can download a copy of his PowerPoint presentation from his
Web site. This article contains 2,312 words.
TechnoLawyer.com: Trial Technology and Visual Communication
By Ted Brooks
(This article is a TechnoLawyer exclusive.)
INTRODUCTION
Along with e-discovery, courtroom technology is one of the hottest topics
buzzing in the legal field today. Courts and clients are encouraging counsel
to get up to speed with the type of trial presentation that can cut the
length of a trial by as much as 50% — while at the same time increasing
juror comprehension and retention by as much as 60%!
Post-trial jury surveys reveal that there is no reason to fear technology
in trial. To the contrary, one should fear the lack of it when considering
that jurors overwhelmingly express appreciation to the trial team that
utilizes technology, and that they are well aware of the benefits: better
comprehension and a shorter trial. Also, remember that nearly half of
today's jury pool has grown up with computers, television, and all forms
of multimedia information and entertainment. While technology and visual
communication will not make you a better attorney, it can make you easier
to follow and understand.
PRESENTATION STYLES
Let's assume we have three basic trial presentation styles. First, we
will cover the "Old School," then "Middle-Tech," and finally "High-Tech."
OLD SCHOOL — In the event that you don't have kids, the
term "old school" can refer to nearly anything that has been done or existed
in the past, including tennis shoes, music, etc. That stated, we can include
items such as hard-copy exhibit binders and posterboard blowups in this
category. It doesn't take much courtroom technology to use these demonstrative
tools (although it does to create them).
Even in technology-enhanced litigation, a hard-copy set of exhibits must
be placed into evidence. The display is not the evidence, but only a means
of sharing it with the jury. The difference would be that you do not need
to have four sets of everything in court, and that everyone can be on
the same page at the same time. The downside of paper is just as it has
always been — it is often difficult to locate exhibits, it is time-consuming
to pass an exhibit to opposing counsel, judge, witness, and then on to
the jury, and it is impossible to control what a juror might look at or
focus on — not to mention that by the time juror #12 sees the exhibit,
you are probably long past that point with the witness.
Posterboard blowups have been used successfully in thousands of trials.
This writer believes that they are not to be considered obsolete, but
rather than having a collection of 50 or 100 boards to search through,
stumble over and crash from the easel, we can now reduce the number to
just a few of the most important items. These might include a timeline,
"smoking gun" documents, maps, etc. And, if you are lucky, they might
just sit there during opposing counsel's examination. You can't do that
on screen.
MIDDLE-TECH — Here, we will include an ELMO, PowerPoint,
and projector with screen. An ELMO (trade name for an electronic document
camera) is a great way to show documents, zoom in on certain areas, or
display a small exemplar or physical exhibit. The jury is forced to remain
on the proper page, and everyone sees the same image at the same time.
The main downside is that the display is generally not as clean and clear
as a document in a trial database. It is also more difficult to zoom into
a specific area, colors appear washed out, and you still have to handle
the hard copy to display it. When used in high-tech trials, an ELMO can
help in the event an unplanned document needs to be displayed or if other
problems arise. It is also low-cost insurance.
PowerPoint is a wonderful application that was designed for business presentations.
Although it too has been used in thousands of trials, it was not designed
specifically for litigation. The strength of PowerPoint is also its shortcoming.
With a PowerPoint presentation, you have a beginning or title slide. Then,
you advance through the presentation one slide after the next, until you
reach the last slide. Although this is a neat, organized method of packaging
a presentation (be it litigation or business), the problem in using this
in litigation is that there is not a trial lawyer alive who has seen a
trial go exactly as planned. A witness jumps to another subject; impeachment
opportunities may arise. Even opening statements and closing arguments
are often changed mid-stream due to time constraints, jury observation,
or other reasons. PowerPoint is designed as a linear format presentation
application. It is also used in a high-tech trial to display bullet points
and charts.
A projector and screen are needed to display a PowerPoint or ELMO to the
jury. Although some courts have them available, most still do not. You
will need to rent or purchase them, and also arrange with the court to
install them before trial. You should also consider approaching opposing
counsel to see if they are willing to split expenses. Judges will not
allow two separate sets of equipment. There is simply not enough space.
A good courtroom projector should be rated at 3000 lumens or greater.
A courtroom is not a darkened meeting room. Often, lights are on, windows
are open, and a weak projector will not allow the jury to view the display.
A screen should be in the 8'-10' range. Again, assuming you want the jury
to see the display, don't expect that they can view a 5 foot screen from
20 feet away with a 1000 lumens projector.
HIGH-TECH — In the best of high-tech trials, all of the
previous styles are not discarded, but supplemented by adding yet another
way to present your evidence by using software designed specifically for
courtroom presentations. TrialDirector, Sanction, and Visionary are a
few of these programs. This writer prefers TrialDirector, but the other
trial-specific programs will certainly get the job done.
The true beauty of courtroom presentation software is that it enables
you to instantly move to a document, zoom and highlight a selected area,
jump then to a demonstrative exhibit, and then on to a deposition video
clip. All of this can be done in a random fashion, as long as you have
included it in your database (and as long as the database has been developed
properly). Each item may be accessed by scanning a barcode or typing in
an exhibit number. TrialDirector will allow you to locate and view a document
in the database view, then shift it to display mode for the jury without
any typing at all. There is no waiting for a VCR to locate the correct
area, or dropping blowups or paper exhibits. The time to access a document
and display it to the jury is measured in only seconds.
Videotaped deposition excerpts may be played for absentee witnesses, or
for impeachment purposes. It is far more powerful watching as a witness
views his own testimony as he is impeached than asking the jury to listen
to another "read-in" transcript excerpt. For witnesses who have not been
videotaped, the transcript may be displayed in a scrolling "read-along"
fashion, affording a second method of getting the message. Studies have
shown that visual communication retention is as high as 80%, while aural
is as low as 20%. In observations of jurors listening to non-video transcripts
being read into the record, the viewing rate of the scrolling transcript
is nearly 100%.
Equipment requirements in the high-tech category are similar to those
for the "middle-tech" category, with the recommended addition of four
small flat-panel monitors — one for the judge, witness, and each counsel
table for the purpose of previewing documents. Once authenticated, permission
is requested of the Court to "publish to the jury." At that time, a switch
is flipped, and the exhibit is displayed to the jury via the projector
and screen. Depending on the Court, exhibits may be admitted at that time,
or at the end of the day.
When considering which exhibits or depositions to include, it is always
better to have, and not need, than to need, and not have. It is good practice
to include everything related to the case. You may not need it, but the
other side may — and then you will.
The quantity of exhibits alone can have a great influence on the jury,
considering they are instructed to "weigh the evidence." When one side
uses technology and the other does not, the quantity of exhibits admitted
with technology can easily outnumber opposing counsel's hard-copies. It
is simply faster, more effective, and more efficient.
PRESENTATION METHODS
DO-IT-YOURSELF — You may prefer to purchase TrialDirector
(about $600) and run the whole show yourself. In doing so, you will have
complete control over the entire universe of documents, graphics, and
video. Nobody knows the material like you, and this may be the way to
go for the true TechnoLawyer. With a bit of training, or just working
with the software, one can easily take a case to court.
The downside to handling everything on your own is the same reason you
hire others to assist you for other tasks, be it associates, paralegals,
etc. Often, there is simply not enough time available to take on yet another
role. It is also generally more cost-effective to have someone billing
at a lesser rate to handle the trial technology. This may also greatly
reduce the degree of risk involved, given that it is usually not a question
whether the technology might have a problem, but when, and how quickly
one can recover — and without having the jury notice anything.
LOAD-SHARING — This is a "middle-of-the-road" approach,
enjoying all that the technology can offer, while working within a lower
budget. To move up to a full-support trial, many attorneys have stated
their magic number is around $1 million. Less than that, you will need
to find ways to cut costs. Over that, the trial warrants full attention
to every detail. This load-sharing compromise enables an attorney to have
a database developed, get documents scanned, videotaped depos prepared,
and demonstrative exhibits created. Then an attorney or paralegal can
take it to court. Often, a trial consultant is used to help through opening
and closing, and a couple of key witnesses.
FULL SUPPORT — When the scope of the trial and budget
thereof permit, it is time to bring in the pros. A good trial/technology
consultant will bring a great deal of calm and peace of mind to the trial
team. Trial techs and consultants generally spend more time in court each
year than not. This is what they are educated and trained to do. They
are not there to try your case, but rather to assist you in getting the
jury to understand your message, and perhaps even more importantly, your
client's perspective on the case. Although individuals in this field vary,
a typical background might include computer technology, graphics, psychology,
and some legal training or education.
The key to working in a full support trial is communication. For example,
when you make reference to a certain paragraph in a certain exhibit, the
tech will need to know what it is you are talking about. They will generally
work with whatever methods you currently use for identifying the exhibits
— be it Bates numbers, deposition exhibit numbers, or trial exhibit numbers.
It would be a bit difficult to simply request "the letter from Jones,
dated 12/11/02." When using full support, the trial tech or consultant
will typically develop and prepare a trial database, get the courtroom
set up before trial, attend the entire trial, and assist in daily preparations.
Risk of technology failure is also minimized in that most trial/technology
consulting firms will provide two independent computer systems just in
case one has problems. Additionally, experienced consultants know how
to quickly (and usually not even noticed by the jury) recover from any
technology-related problem.
THE BOTTOM LINE
The question that must be considered for each and every trial is, "What
does it cost?" Perhaps another way of asking this of yourself might be,
"What will it cost me if I don't take advantage of everything available?"
This writer has been a part of several trials and settlements (both plaintiff
and defense) in which counsel has stated that the outcome was greatly
influenced by the use of technology. Additionally, once they have tried
it, most first-time users of trial technology vow to never try another
case without it.
The actual cost of using technology in a trial varies depending on the
degree of support (do-it-yourself, load-sharing, full support), the duration
of the trial, and the venue. Billing rates are typically higher in major
cities, but often that is where you find the best trial consulting firms.
Hourly rates for trial techs and consultants vary from the low $100's
up to the $200's, with some going even higher. A one month trial might
run in the $60-$70k range for full support, and may drop to $20-$30k for
load-sharing support.
CONCLUSION
Like it or not, courtroom technology is here to stay. The courts are pushing
for it, realizing that although their case load is not getting smaller,
they can speed up the process with technology. Many are even purchasing
equipment for counsel to use at no cost. A few judges even require it.
Many tech-savvy clients demand it, and jurors expect to see it. Many lawyers
have decided to give it a whirl after seeing a presentation (or reading
an article). Others have been convinced in the courtroom — some after
a loss. The old excuses (costs too much, too flashy, too risky, etc.)
no longer work as they now have all been overcome.
ABOUT THE AUTHOR
Ted Brooks is the President of Litigation-Tech LLC, a trial technology
consulting firm based in the San Francisco Bay Area. Ted recently won
the Law Technology News Award for Most Innovative Use of Technology in
a Trial. You can contact Ted via e-mail tbrooks@litigationtech.com
or telephone 415-794-6454.
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About TechnoLawyer
Published on Tuesdays, TechnoFeature is a weekly newsletter containing
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